Sentencing (Amendment) Act 2002 (Vic)

Sentencing (Amendment) Act 2002

Act No. 2/2002

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2

PART 2—SENTENCING ACT 1991 3

4.	Drug treatment order as sentencing order	3
5.	New Subdivision (1C) inserted in Division 2 of Part 3	4
Subdivision (1C)—Drug Treatment Orders	4

18X.	Purposes of drug treatment order	4
18Y.	Order only available at Drug Court	5
18Z.	When drug treatment order can be made	5
18ZA.	Order can cover multiple offences	7
18ZB.	Effect of Drug Court declining to make an order	8
18ZC.	The parts of a drug treatment order	8
18ZD.	Sentence of imprisonment must be imposed	8
18ZE.	Activation of custodial part of an order	9

18ZF. Core conditions	11
18ZG. Program conditions	13

18ZH.	Variation on assessing offender's progress	14
18ZI.	Case conferences	15
18ZJ.	Rewards for complying with conditions	15
18ZK.	Cancellation as a reward	16
18ZL.	Failure to comply with conditions	17
18ZM.	Service in a secure custody facility	19
18ZN.	Commission of certain offences	21
18ZO.	Drug Court may hear and determine certain offences	23
18ZP.	Cancellation	24
18ZQ.	Drug treatment order assessment reports	27
18ZR.	Appeals	30
18ZS.	Immunity from prosecution for certain offences	33

6. Statute law revision 33

i

Section Page

7. New section 126 inserted 33

126.        Transitional provisions—Sentencing (Amendment)

Act 2002 34

8.	Repeal of drug treatment order provisions	34
9.	New section 126A inserted	34

126A.	Transitional provision—repeal of amendments made
by Sentencing (Amendment) Act 2002 35

PART 3—MAGISTRATES' COURT ACT 1989 36

10. New sections 4A and 4B inserted 36

4A.	Establishment of Drug Court Division	36
4B.	Intra-venue referrals	36

11. New section 4C inserted 37

4C. Inter-venue referrals 37

PART 4—CORRECTIONS ACT 1986 39

12.	Definition of "correctional order"	39
13.	Persons not regarded to be in the Secretary's legal custody	39
14.	Repeals	40

═══════════════

ENDNOTES 41

ii

Victoria

No. 2 of 2002

Sentencing (Amendment) Act 2002†

[Assented to 26 March 2002]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The main purposes of this Act are—

(a)	to amend the Sentencing Act 1991 to provide for a drug treatment order as a new sentencing order; and
(b)	to amend the Magistrates' Court Act 1989 to establish a Drug Court Division of the Magistrates' Court; and

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s. 2 Act No. 2/2002

(c) to amend the Corrections Act 1986 with respect to the custody of a person subject to a drug treatment order.

2. Commencement

(1) This Part comes into operation on the day after the

day on which this Act receives the Royal Assent.

(2) Sections 8, 9 and 14 come into operation on the day that is the fourth anniversary of the day on which section 5 comes into operation.

(3) Subject to sub-sections (4) and (5), the remaining

provisions of this Act come into operation on a

day or days to be proclaimed.

(4) If a provision referred to in sub-section (3) (other

than section 11) does not come into operation
before 1 December 2002, it comes into operation
on that day.

(5) If section 11 does not come into operation before 1 December 2003, it comes into operation on that day.

3. Principal Act

See:

Act No.	In this Act, the Sentencing Act 1991 is called the
49/1991.	Principal Act.
Reprint No. 6 as at 1 August 2001
and
amending
Act Nos 45/2001 and 00/2001. LawToday: dpc.vic. gov.au

__________________
Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 4

PART 2—SENTENCING ACT 1991

4. Drug treatment order as sentencing order

(1) In section 3(1) of the Principal Act insert—

' "Drug Court" means the Drug Court Division of the Magistrates' Court;

"Drug Court officer" means a person who—

(a)

is employed under Part 3 of the Public Employment Act 1998; and

(b) exercises powers or performs functions in relation to the Drug Court;

"drug treatment order" means an order under Subdivision (1C) of Division 2 of Part 3;

"secure custody facility" means—

(a) a prison as defined in section 3 of the Corrections Act 1986; or

(b) a youth training centre; or

(c) any other place the Minister specifies under sub-section (2);'.

(2) In section 3(1) of the Principal Act, in the

definition of "Regional Manager", after "in

relation to" insert "a drug treatment order,".

(3) In section 3 of the Principal Act, after sub-section

(1) insert—

'(2) The Minister may, by notice published in the Government Gazette, specify a place for the purposes of paragraph (c) of the definition of "secure custody facility" in sub-section (1).

(3) Section 6(b) of the Corrections Act 1986 is

taken to include an order under section
18ZL(1)(f) that a person serve a period in a

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place referred to in paragraph (c) of the definition of "secure custody facility" in sub-section (1).'.

(4) In section 5(4A) of the Principal Act, for "an intensive correction order" substitute "a drug treatment order".

(5) In section 5 of the Principal Act, after sub-section

(4A) insert—

"(4B) A court must not impose a drug treatment

order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by an intensive

correction order.".

(6) In section 7(1) of the Principal Act, before

paragraph (b) insert—

"(ac) record a conviction and make a drug

treatment order in respect of the offender;
or".

5. New Subdivision (1C) inserted in Division 2 of Part 3 After Subdivision (1B) of Division 2 of Part 3 of the Principal Act insert—

'Subdivision (1C)—Drug Treatment Orders

18X. Purposes of drug treatment order

(1) The particular purposes of a drug treatment

order are—

(a)	to facilitate the rehabilitation of the offender by providing a judicially- supervised, therapeutically-oriented,
integrated drug or alcohol treatment and supervision regime;
(b)	to take account of an offender's drug or alcohol dependency;

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(c)	to reduce the level of criminal activity associated with drug or alcohol dependency;
(d)

to reduce the offender's health risks dependency.

(2) Nothing in sub-section (1) affects the

operation of section 5(1) but, if considering
making a drug treatment order, the Drug
Court must regard the rehabilitation of the
offender and the protection of the
community from the offender (achieved
through the offender's rehabilitation) as
having greater importance than the other

purposes set out in section 5(1).

18Y. Order only available at Drug Court

Only the Drug Court may make a drug treatment order.

18Z. When drug treatment order can be made

(1) The Drug Court may make a drug treatment

order if—

(a) that is within the jurisdiction of the
Magistrates' Court and punishable on

an offender pleads guilty to an offence than—

(i)  a sexual offence as defined in section 6B(1); or

(ii)

subject to sub-section (5), an actual bodily harm; and

(b) the Drug Court convicts the offender of the offence; and

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(c) the Drug Court is satisfied on the balance of probabilities that—

(i)  the offender is dependent on drugs or alcohol; and

(ii) the offender's dependency
contributed to the commission of
the offence; and

(d) the Drug Court considers that—

(i)  a sentence of imprisonment would otherwise be appropriate; and

(ii) sentence be served by way of
intensive correction in the
community nor would it have

it would not have ordered that the or part; and

(e) the Drug Court has received a drug treatment order assessment report on the offender under section 18ZQ.

(2) However, a drug treatment order cannot be

made in respect of an offender who is subject
to—

(a) a parole order; or

(b)	a combined custody and treatment order; or
(c)	a sentencing order of the County Court or Supreme Court.

(3) The Drug Court must not make a drug

treatment order unless—

(a) it is satisfied in all the circumstances that it is appropriate to do so; and

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(b) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.

Note: Section 18ZC sets out what the treatment and supervision part of the order is.

(4) The Drug Court may make a drug treatment order in respect of an offender regardless of whether—

(a)

the offender's drug or alcohol previous occasions to the offender—

(i)

committing an offence of which found guilty; or

(ii)

failing to comply with the sentencing order; or

(b) the offender has been previously sentenced to one or more terms of imprisonment.

(5) Despite sub-section (1)(a)(ii), the Drug Court

may make a drug treatment order in respect
of an offender where the offence involved
the infliction of actual bodily harm if it is
satisfied that the harm was of a minor nature.

18ZA. Order can cover multiple offences

(1) A drug treatment order may be made in

respect of one or more offences committed
by an offender.

(2) An offender can only be subject to one drug treatment order at any particular time.

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18ZB. Effect of Drug Court declining to make an

order

If an offender has pleaded guilty to an offence or offences in respect of which the Drug Court could make a drug treatment order but it does not consider it appropriate to do so, the Drug Court must—

(a)	sentence the offender in relation to the offence or offences if the offender consents to the Drug Court doing so; or
(b)	adjourn the matter for sentencing to the Magistrates' Court (other than the Drug Court) at that venue.

18ZC. The parts of a drug treatment order

(1) A drug treatment order consists of 2 parts—

(a) the treatment and supervision part; and

(b) the custodial part.

(2) The treatment and supervision part of a drug treatment order—

(a)	consists of the core conditions and program conditions attached to the order; and
(b)	operates for 2 years or until that part of the order is cancelled under section 18ZK, 18ZN or 18ZP.

(3) The custodial part of a drug treatment order

consists of the sentence of imprisonment that the Drug Court must impose on the offender under section 18ZD.

18ZD. Sentence of imprisonment must be imposed

(1) When making a drug treatment order, the Drug Court must impose a sentence of

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imprisonment of no more than 2 years on the
offender.

(2) The Drug Court must impose the sentence of

imprisonment that it would have imposed if
it had not made the drug treatment order.

(3) Despite anything to the contrary in

section 11, the Drug Court must not fix a non-parole period in accordance with that section as part of the sentence imposed by it.

Note:  A non-parole period may be fixed as part of
certain orders under this Subdivision activating
the custodial part of a drug treatment order (see
section 18ZE(3)).

18ZE. Activation of custodial part of an order

(1) Despite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug treatment order, and that part of the

order does not commence, except in accordance with an order under this Subdivision activating that part of the order.

Note: The Drug Court may make an order activating some or all of the custodial part under section 18ZL(1)(f) (which involves serving a period in

a secure custody facility), or under section

18ZN or 18ZP.

(2) In making an order under this Subdivision

activating some or all of the custodial part of a drug treatment order, the Drug Court must first—

(a) custodial part of the order by
subtracting from the length of the

calculate the remaining length of the under the order—

(i)  each period of custody declared under this Act as reckoned to be a

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period already served under the

sentence; and

(ii) secure custody facility under the
custodial part of the order because

each period of custody served in a 18ZL(1)(f); and

(b) if the total of—

(i)  the remaining length of the custodial part of the order; and

(ii)

the period during which the the order has already operated—

is more than 2 years, reduce the
remaining length of the custodial part

so that the total is 2 years.

(3) If the Drug Court makes an order under

activating the custodial part of a drug
treatment order for a period of one year or
more, the Drug Court may, as part of the
order under that section, fix in respect of the
custodial part a non-parole period in
accordance with section 11, as if the Drug

section 18ZN(1)(b)(i) or 18ZP(2)(a) term of imprisonment.

Example

The Drug Court decides to make an order activating the custodial part of a drug treatment order 18 months after the drug treatment order was made. When it made the drug treatment order, it imposed a sentence of imprisonment of 8 months. The Drug Court—

(a)

custodial part of the drug treatment order is

calculates that the remaining length of the imprisonment imposed under the order was

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8 months from which the Drug Court subtracts—

(i)  14 days that the offender spent in custody before sentencing; and

(ii)  16 days that the offender served in a secure custody facility because of an earlier order under section 18ZL(1)(f);

and

(b) calculates that the total of—

(i)  the remaining length of the custodial part (7 months); and

(ii) and supervision part of the drug

the period during which the treatment (18 months)—

is 25 months, which is 1 month over 2 years;

and

(c) so that the total is 2 years, reduces the remaining length of the custodial part by 1 month to 6 months.

This means that the Drug Court may make an
order activating the custodial part for no more than

6 months.

18ZF. Core conditions

(1) The core conditions attached to a drug

treatment order are that, while the treatment
and supervision part of the order operates,

the offender—

(a)	must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment; and
(b)	must attend the Drug Court when required by the Drug Court to do so; and
(c)	must report to a specified community corrections centre or other specified

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place within 2 clear working days after the order is made; and

(d) must undergo treatment for drug or alcohol dependency as specified in the order or from time to time by—

(i) the Drug Court; or

(ii) a specified community corrections
officer; or

(iii)  a specified Drug Court officer; and

(e)	must report to, and accept visits from, a specified community corrections officer or specified Drug Court officer; and
(f)	must give notice of any change of address within 2 clear working days before the change, unless there are special circumstances, to—

(i) the Drug Court; or

(ii) a specified community corrections
officer; or

(iii)  a specified Drug Court officer; and

(g) must not leave Victoria except with the permission, granted either generally or in a particular case, of one of the

following—

(i) the Drug Court;

(ii) a specified community corrections
officer;

(iii)  a specified Drug Court officer; and

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(h) directions of the Drug Court,

must obey all lawful instructions and specified Drug Court officers.

(2) A drug treatment order must have all the

core conditions attached to it and the
offender must comply with all of those
conditions.

18ZG. Program conditions

(1) The program conditions that may be attached

to a drug treatment order are that, while the treatment and supervision part of the order operates, the offender—

(a)	must submit to drug or alcohol testing as specified in the order; and
(b)	treatment specified in the order

must submit to detoxification or other and

(c)	must attend vocational, educational, employment or other programs as specified in the order; and
(d)	must submit to medical, psychiatric or psychological treatment as specified in the order; and
(e)	must not associate with specified persons; and
(f)	must reside at a specified place for a specified period; and
(g)	must do or not do anything else that the Drug Court considers necessary or appropriate concerning—

(i)  the offender's drug or alcohol dependency; or

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(ii) the personal factors that the Drug Court considers contributed to the offender's criminal behaviour.

(2) The Drug Court must attach to a drug

treatment order at least one program
condition but must not attach any more
program conditions than it considers
necessary to achieve the purposes for which
the order is made.

(3) An offender must comply with all of the program conditions attached to the drug treatment order.

18ZH. Variation on assessing offender's progress

(1) The Drug Court may vary the treatment and

supervision part of a drug treatment order
from time to time if the Drug Court
considers it appropriate to do so based on its
assessment of the offender's progress.

Note: The Drug Court may also vary the treatment

and supervision part of a drug treatment order
under section 18ZJ, 18ZL or 18ZN.

(2) The Drug Court may do so on its own

initiative or on the application of—

(a) the offender; or

(b) the informant or police prosecutor; or

(c) a prescribed person or a person in a prescribed class of persons.

(3) The treatment and supervision part of the order may be varied by—

(a)	adding or removing program conditions; or
(b)	varying one or more core conditions, other than the condition referred to in

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section 18ZF(1)(a), or program conditions, for example to vary—

(i) the frequency of treatment; or

(ii) the degree of supervision; or

(iii)  the frequency of drug or alcohol testing; or

(iv)  the type or frequency of vocational, educational, employment or other programs

that the offender must attend.

18ZI. Case conferences

(1) For the purpose of being informed from time to time about the progress being made by an offender subject to a drug treatment order,

the magistrate constituting the Drug Court
may convene a case conference.

(2) A case conference may be attended by a legal practitioner, a prosecutor, a health service provider, a community corrections

officer or anyone else whom the magistrate

thinks should attend.

(3) For the purposes of section 91 of the

Corrections Act 1986, an officer referred to in that section who discloses at a case conference information about an offender subject to a drug treatment order is taken to be performing his or her official duties.

(4) No objection can be taken to a magistrate

subsequently constituting the Drug Court in
a proceeding on the ground that he or she
had previously convened a case conference
in relation to the proceeding.

18ZJ. Rewards for complying with conditions

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s. 5 Act No. 2/2002

(1) The Drug Court may, on its own initiative,

confer a reward from time to time on an
offender who is or has been fully or
substantially complying with the conditions
attached to a drug treatment order by doing
one or more of the following—

(a)	varying the treatment and supervision part of the order under sub-section (2);
(b)	varying or cancelling an order under section 18ZL(1)(c), (d) or (e);
(c)	making an order that some or all of a period for which the custodial part of the drug treatment order is activated
under section 18ZL(1)(f), but which the offender is yet to serve in a secure custody facility, is no longer activated;
(d)	conferring on the offender any other reward that the Drug Court considers appropriate.

(2) The treatment and supervision part of the order may be varied by—

(a)	adding or removing program conditions; or
(b)	varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program

conditions, for example to reduce—

(i) the frequency of treatment; or

(ii) the degree of supervision; or

(iii)  the frequency of drug or alcohol testing.

18ZK. Cancellation as a reward

(1) The Drug Court may, on its own initiative, as a reward cancel the treatment and

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supervision part and custodial part of a drug

treatment order if it considers that—

(a)	the offender has to date fully or substantially complied with the conditions attached to the order; and
(b)	the continuation of the order is no longer necessary to meet the purposes for which it was made.

(2) To avoid doubt, if the Drug Court cancels the

treatment and supervision part and custodial
part of a drug treatment order under this
section any earlier orders activating the
custodial part of the order cease to have
effect.

18ZL. Failure to comply with conditions

(1) If the Drug Court is satisfied on the balance of probabilities that an offender has, without reasonable excuse, failed to comply with a

condition attached to a drug treatment order
(other than by committing an offence
punishable on conviction by imprisonment
for more than 12 months) the Drug Court

must take one of the following actions—

(a)	confirm the treatment and supervision part of the order;
(b)	vary that part of the order under sub-section (3);
(c)	order that a curfew, requiring the offender to remain at a specified place between specified hours, applies to the offender for a specified period;
(d)

order that the offender perform up to directed by the Regional Manager of the region in which the community

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corrections centre specified in the order is located;

(e) order that the offender remain at a specified place, other than a secure custody facility, for a specified period

of up to 14 days;

(f)	subject to section 18ZM, order that the custodial part of the drug treatment order is activated for a specified period of between one and 7 days to be served in a secure custody facility.
Note 1:	If the offender commits an offence punishable on conviction by imprisonment for more than 12 months, see section 18ZN.
Note 2:	Section 18ZE sets out how much of the custodial part of a drug treatment order can be activated.
Note 3:	For "secure custody facility" see section 3(1).

(2) In deciding which action to take under

sub-section (1), the Drug Court must
consider each of the actions in the order in
which they appear and must only take the
first action that the Court considers to be
appropriate in the circumstances.

(3) The treatment and supervision part of the order may be varied by—

(a)	adding or removing program conditions; or
(b)	varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program

conditions, for example to increase—

(i) the frequency of treatment; or

(ii) the degree of supervision; or

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s. 5

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(iii)  the frequency of drug or alcohol testing.

(4) If the Drug Court is satisfied on the balance

of probabilities that an offender who is
subject to an order under sub-section (1)(c),
(d) or (e) has failed to comply with the order,
the Drug Court must take one of the
following actions—

(a) confirm or vary that order;

(b) cancel that order and take any action under sub-section (1), including making another order of the same kind, as though the offender had failed to comply with a condition attached to the drug treatment order.

Note: In addition, the Drug Court may cancel the treatment and supervision part of the drug treatment order and may also cancel the

custodial part of that order (see section 18ZP).

(5) The Drug Court may take an action under

sub-section (1) or (4) on its own initiative or
on an application by—

(a) the informant or police prosecutor; or

(b) a prescribed person or a person in a prescribed class of persons.

18ZM. Service in a secure custody facility

(1) The Drug Court may only make an order under section 18ZL(1)(f) if it is satisfied beyond reasonable doubt that the offender

has failed to comply with the condition

attached to the drug treatment order.

(2) If the Drug Court makes an order under that

section, it—

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(a)	must specify in the order the kind of secure custody facility in which the period is to be served; and
(b)	must only specify a youth training centre if the offender is a young offender and the Drug Court considers it appropriate to do so.

(3) An offender can only be required to serve a

period in a secure custody facility in
accordance with an order under section
18ZL(1)(f) when—

(a)	the period under the order under section 18ZL(1)(f); or
(b)	the total of the periods for which the custodial part is activated under 2 or more such orders and which the

offender has not yet served—

is at least 7 days, not including so much of
the period or periods as is no longer
activated because of an order under section

18ZJ(1)(c).

Note: An order may be made under section

18ZJ(1)(c) as a reward for complying with the conditions attached to a drug treatment order.

(4) Before the Drug Court makes an order under

section 18ZL(1)(f), notice of the hearing
concerning the making of the order must be
given to—

(a) the offender; and

(b) the informant or police prosecutor; and

(c) the prescribed person or the person in the prescribed class of persons—

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and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing.

(5) If the Drug Court makes an order under

section 18ZL(1)(f) the Drug Court may, for
the purposes of giving effect to that order,
issue a warrant to imprison the offender
under section 68 of the Magistrates' Court
Act 1989.

18ZN. Commission of certain offences

(1) If the Drug Court is satisfied beyond

reasonable doubt that an offender has failed
to comply with a condition attached to a drug
treatment order, by committing an offence
punishable on conviction by imprisonment
for more than 12 months, the Drug Court

must—

(a) take any of the actions under section 18ZL(1) as though the offender had failed to comply with any other

condition attached to the order;

(b) cancel the treatment and supervision part of the order and, after taking into account the extent to which the offender complied with that part of the order—

(i)  make an order activating some or all of the custodial part of the drug treatment order; or

(ii) drug treatment order and deal with
the offender for each offence in
respect of which the drug

cancel the custodial part of the way in which the Drug Court

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could deal with the offender if it had just convicted him or her of each offence, other than by

making an order under section

7(1)(a).

Note 1:	Section 18ZE sets out how much of the custodial part of a drug treatment order can be activated.
Note 2:	The Drug Court may be required to take an action under paragraph (b) because of section 18ZO(3).

(2) The Drug Court may take an action under

sub-section (1) on its own initiative or on an
application by—

(a) the informant or police prosecutor; or

(b) a prescribed person or a person in a prescribed class of persons.

(3) Before the Drug Court cancels the treatment

and supervision part of a drug treatment
order under sub-section (1) (whether or not it
also cancels the custodial part), notice of the
hearing concerning the cancellation must be
given to—

(a) the offender; and

(b) the informant or police prosecutor; and

(c) the prescribed person or the person in the prescribed class of persons—

and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing.

(4) To avoid doubt, if the Drug Court cancels the

treatment and supervision part or custodial
part of a drug treatment order under this
section, any earlier orders activating the

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s. 5

Act No. 2/2002

custodial part of the order cease to have

effect.

18ZO. Drug Court may hear and determine

certain offences

(1) If an offender who is subject to a drug

treatment order is charged with an offence, whether committed before or after the order was made, that is within the jurisdiction of

the Magistrates' Court—

(a)	the Drug Court may hear and determine the offence; and
(b)	for the purposes of the Magistrates' Court Act 1989, the Drug Court is taken to be the proper venue in relation to the proceeding for that offence.

(2) If—

(a)	the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and
(b)	the Drug Court does neither of the following—

(i)  orders that the sentence be served by way of intensive correction in the community;

(ii)  suspends the sentence in whole or part; and

(c)	the length of the sentence imposed is not more than the remaining length of the custodial part of the drug treatment order (as calculated in accordance with section 18ZE(2)(a)); and
(d)	the offence is a kind of offence in respect of which the Drug Court could

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make a drug treatment order if the offender were not already subject to one—

in imposing the sentence, the Drug Court may order that the sentence is subsumed within the custodial part of the drug

treatment order.

(3) If—

(a)	the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and
(b)	the Drug Court does neither of the following—

(i)  orders that the sentence be served by way of intensive correction in the community;

(ii)  suspends the sentence in whole or part; and

(c) the Drug Court does not order under sub-section (2) that the sentence is subsumed within the custodial part of the drug treatment order—

the Drug Court must cancel the treatment and supervision part of the drug treatment order under section 18ZN(1)(b) and take an

action under sub-paragraph (i) or (ii) of that

section.

18ZP. Cancellation

(1) The Drug Court may cancel the treatment

and supervision part of a drug treatment
order if it is satisfied on the balance of
probabilities that—

Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 5

(a) offender's circumstances were not

before the order was made, the Court or the author of the drug treatment order assessment report on the offender; or

(b)	the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or
(c)	the offender is no longer willing to comply with one or more conditions attached to the order; or
(d)	the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or
(e)

the offender has breached an order (e).

Note: The Drug Court may also cancel the treatment and supervision part of the order under section 18ZK or 18ZN.

(2) When cancelling the treatment and supervision part of the order under sub-section (1), the Drug Court must, after

taking into account the extent to which the
offender complied with that part of the order,

take one of the following actions—

(a)	make an order activating some or all of the custodial part of the drug treatment order;
(b)	cancel the custodial part of the drug treatment order and deal with the

Sentencing (Amendment) Act 2002

s. 5	Act No. 2/2002
which the drug treatment order was made in any way in which the Drug
offender for each offence in respect of had just convicted him or her of each offence, other than by making an order under section 7(1)(a).

Note: Section 18ZE sets out how much of the

custodial part of a drug treatment order can be
activated.

(3) The Drug Court may take an action under

sub-section (1) or (2) on its own initiative or
on the application of—

(a) the offender; or

(b) the informant or police prosecutor; or

(c) a prescribed person or a person in a prescribed class of persons.

(4) Before the Drug Court cancels the treatment

and supervision part of a drug treatment order (whether or not it also cancels the custodial part), notice of the hearing
concerning the cancellation must be given

to—

(a) the offender; and

(b) the informant or police prosecutor; and

(c) the prescribed person or the person in the prescribed class of persons—

and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing.

(5) To avoid doubt, if the Drug Court cancels the

treatment and supervision part or custodial
part of a drug treatment order under this
section, any earlier orders activating the

Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 5

custodial part of the order cease to have

effect.

18ZQ. Drug treatment order assessment reports

(1) If the Drug Court is considering making a

drug treatment order at any stage after a
defendant has indicated an intention to plead
guilty to an offence, or has pleaded guilty to
an offence, it must—

(a)	order a drug treatment order assessment report on the defendant; and
(b)	adjourn the proceeding to enable the report to be prepared by a specified Drug Court officer.

(2) The purpose of a drug treatment order

assessment report is—

(a) to establish whether the defendant is a suitable person to be subject to a drug treatment order; and

(b) if so—

(i)  to prepare a case management plan for the defendant; and

(ii)  to establish whether the facilities necessary to implement that plan exist and, if so, to identify those facilities; and

(iii) Drug Court on the program
conditions that should be attached

to make recommendations to the respect of the defendant.

(3) If the Drug Court grants a defendant bail on

an adjournment under sub-section (1) it must, for the purpose of facilitating the

Sentencing (Amendment) Act 2002

s. 5 Act No. 2/2002

preparation of the report, impose a condition

of bail requiring the defendant to—

(a)	report to the specified Drug Court officer, or other specified person or body, within a specified period; and
(b)

comply with any further reporting person or body.

(4) A drug treatment order assessment report

may set out all or any of the following
matters which, on investigation, appear to
the specified Drug Court officer to be
relevant to the assessment of the defendant
and are readily ascertainable by the officer—

(a) the defendant's age;

(b)	the defendant's social history and background;
(c)	history, including details of any

the defendant's medical and psychiatric for drug or alcohol dependency;

(d) the defendant's educational
background;

(e) the defendant's employment history;

(f) the circumstances of any other offences of which the defendant has been found guilty;

(g) the extent to which the defendant—

(i)  has complied with any sentence that is no longer in force in respect of him or her; and

(ii)  is complying with any sentence currently in force in respect of him or her;

Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 5

(h) the defendant's financial circumstances;

(i)  the defendant's housing history and needs;

(j) any special needs of the defendant;

(k)

any course, program, treatment, therapy available to the offender and from which he or she may benefit.

(5) The specified Drug Court officer must

include in the report any other matter
relevant to the defendant which the Drug
Court has directed to be set out in the report.

(6) The report must be filed with the Drug Court no later than the time directed by the Court.

(7) Within a reasonable time after the report is

filed and before a drug treatment order is
made, the specified Drug Court officer must
provide a copy of the report to—

(a) the prosecutor; and

(b) the defendant's legal practitioner; and

(c) if the Drug Court directs the officer to do so, the defendant.

(8) The prosecution or defence may file with the

Drug Court a notice of intention to dispute all or any part of a drug treatment order assessment report.

(9) If a notice is filed before a drug treatment

order is made, the Drug Court must not take
the disputed report or disputed part of the
report into consideration when making the
order unless the party that filed the notice
has been given the opportunity—

(a) to lead evidence on the disputed matters; and

Sentencing (Amendment) Act 2002

s. 5 Act No. 2/2002

(b) to cross-examine the specified Drug Court officer on its contents.

(10) For the purposes of section 91 of the

Corrections Act 1986, an officer referred to in that section who discloses to the specified Drug Court officer information about the
defendant for the purposes of the preparation
of a drug treatment order assessment report
is taken to be performing his or her official

duties.

18ZR. Appeals

(1) On the hearing of an appeal under section 83

against a sentencing order made by the

or 84 of the Magistrates' Court Act 1989 Court), the County Court cannot itself make a drug treatment order, despite anything to the contrary in section 86(1) of that Act.

(2) Subdivision 1 of Division 4 of Part 4 of the

Magistrates' Court Act 1989, and Schedule 6 to that Act, apply with respect to appeals to the County Court against any sentencing order made by the Drug Court with the following modifications—

(a) an appeal does not lie against—

(i)  a refusal of the Drug Court to make a drug treatment order; or

(ii)  a finding that an offender has failed to comply with a condition attached to a drug treatment order; or

(iii)

the variation of the treatment and treatment order; or

Sentencing (Amendment) Act 2002

Act No. 2/2002	s. 5
(iv)	and supervision part, or the

the cancellation of the treatment order;

(b) if the appeal is against the custodial part of the drug treatment order and not against the treatment and supervision part of the order, the appeal does not operate as a stay of the drug treatment order, unless the County Court so orders.

(3) For the purposes of Subdivision 1 of

Division 4 of Part 4 of the Magistrates' Court Act 1989, and Schedule 6 to that Act, an order under this Subdivision activating some or all of the custodial part of a drug treatment order is taken to be a sentencing order made by the Drug Court.

(4) Despite sub-section (1), on the hearing of an

appeal under section 83 or 84 of the
Magistrates' Court Act 1989 against a drug
treatment order made by the Drug Court, the
County Court may—

(a)	re-instate the drug treatment order set aside by it under section 86(1)(a) of that Act; or
(b)	if the appeal is against the custodial part of the drug treatment order, re- instate that part set aside by it under section 86(1)(a) of that Act or vary the

drug treatment order by increasing or reducing the length of the sentence of imprisonment.

(5) On the hearing of an appeal under section 83

or 84 of the Magistrates' Court Act 1989
against a sentencing order made by the

Sentencing (Amendment) Act 2002

s. 5 Act No. 2/2002

Magistrates' Court (other than the Drug consideration of the making of such an order, with or without any direction in law.

Court) at a particular venue of that Court, if
the County Court considers that the making
of a drug treatment order may be
appropriate, it may refer the matter to the

(6) However, if the offender has a usual place of residence, the County Court may only refer a matter under sub-section (5) to the Drug

Court at a venue if the offender's usual place
of residence is within a postcode area
specified, in relation to that venue, by the
Minister by notice published in the

Government Gazette.

(7) Despite anything to the contrary in the

Magistrates' Court Act 1989, a venue of the Magistrates' Court to which a matter is referred under sub-section (5) is the proper venue of that Court in relation to that matter

for the purposes of that Act.

(8) If a matter is referred to the Drug Court

under sub-section (5) but the Drug Court determines not to make a drug treatment order, the Drug Court must remit the matter
to the County Court for the making of any
order under section 86(1) of the
Magistrates' Court Act 1989 which the

County Court can make.

(9) If a matter is referred to the Drug Court

makes a drug treatment order, the order has
effect for the purposes of Subdivision 1 of
Division 4 of Part 4 of the Magistrates'

under sub-section (5) and the Drug Court order made by the County Court on the

Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 6

hearing of the appeal but for all other
purposes has effect as an order of the Drug

Court.

18ZS. Immunity from prosecution for certain

offences

(1) A person is not liable to prosecution for any offence comprising the unlawful possession or use of drugs of addiction—

(a)	as a result of any admission made in connection with any assessment of the eligibility of the person for the making of a drug treatment order; or
(b)	as a result of any admission made in connection with the assessment by the Drug Court, or at a case conference convened under section 18ZI(1) by the magistrate constituting the Drug Court, of the person's progress under a drug treatment order.

(2) Sub-section (1) does not prevent a

prosecution for any offence comprising the
unlawful possession or use of drugs of
addiction if there is evidence, other than the
admission or evidence obtained as a result of

the admission, to support a charge.

(3) The admission, and any evidence obtained as

a result of the admission, is not admissible against the person in a prosecution referred to in sub-section (2).'.

6. Statute law revision

In section 123 (second occurring) of the Principal

Act, for "123." substitute "124.".

7. New section 126 inserted

After section 125 of the Principal Act insert—

Sentencing (Amendment) Act 2002

s. 9 Act No. 2/2002

"126. Transitional provisions—Sentencing

(Amendment) Act 2002

Subdivision (1C) of Division 2 of Part 3 applies to the sentencing of a person for an offence, irrespective of when the offence was committed.".

8. Repeal of drug treatment order provisions

(1) In section 3(1) of the Principal Act—

(a) the definition of "Drug Court" is repealed;

(b)	the definition of "Drug Court officer" is repealed;
(c)	the definition of "drug treatment order" is repealed;
(d)	the definition of "secure custody facility" is repealed;
(e)	in the definition of "Regional Manager", omit "a drug treatment order,".

(2) In section 3 of the Principal Act, sub-sections (2)

and (3) are repealed.

(3) In section 5(4A) of the Principal Act, for "a drug

treatment order" substitute "an intensive

correction order".

(4) In section 5 of the Principal Act, sub-section (4B)

is repealed.

(5) In section 7(1) of the Principal Act, paragraph (ac)

is repealed.

(6) In Division 2 of Part 3 of the Principal Act,

Subdivision (1C) is repealed.

9. New section 126A inserted

After section 126 of the Principal Act insert—

Sentencing (Amendment) Act 2002
Act No. 2/2002

"126A. Transitional provision—repeal of amendments made by Sentencing (Amendment) Act 2002

Despite the amendments to this Act made by section 8 of the Sentencing (Amendment) Act 2002, this Act as amended by sections 4 and 5 of that Act continues to apply to a drug treatment order in force immediately before the commencement of section 8 of that Act.".

__________________
Sentencing (Amendment) Act 2002

s. 10 Act No. 2/2002

PART 3—MAGISTRATES' COURT ACT 1989

10. New sections 4A and 4B inserted

See:

Act No.	After section 4 of the Magistrates' Court Act
51/1989.	1989 insert—
Reprint No. 7
as at	"4A. Establishment of Drug Court Division
1 June 2001
and	(1) The Court has a Drug Court Division.
amending Act Nos	(2) The Drug Court Division has such of the
53/2000,
92/2000,	powers of the Court as are necessary to
98/2000,
99/2000 (as	enable it to exercise its jurisdiction.
amended by	(3) Despite section 4(3), the Drug Court
No. 12/2001),
2/2001,	Division shall only be constituted by a
14/2001,
32/2001,	magistrate who has been assigned to that
44/2001,	Division by the Chief Magistrate by notice
45/2001,
61/2001 and	published in the Government Gazette. (4) Despite anything to the contrary in this Act,
69/2001.
LawToday:
dpc.vic.	the Drug Court Division may only sit and act
gov.au	at a venue of the Court specified by the Chief Magistrate by notice published in the Government Gazette.

(5) The Drug Court Division must exercise its

technicality, and with as much expedition, as
the requirements of this Act and the

jurisdiction with as little formality and consideration of the matters before the Court permit.

4B. Intra-venue referrals

(1) If—

(a) a criminal proceeding is commenced at a venue of the Court at which the Drug Court Division may sit and act; and

Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 11

(b)	the Court is constituted by a magistrate who has not been assigned to the Drug Court Division under section 4A(3); and
(c)	it appears to the Court at any time before taking a formal plea from the defendant that the defendant might be eligible for a drug treatment order if convicted of the offence by the Drug Court Division—
(2) However, if the defendant has a usual place	the Court may adjourn the proceeding to the defendant consents to the Court doing so.
of residence, the Court may only adjourn the proceeding to the Drug Court Division at that venue if the defendant's usual place of
residence is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette.".

11. New section 4C inserted

Before section 5 of the Magistrates' Court Act

1989 insert—

"4C. Inter-venue referrals

(1) If—

(a)	a criminal proceeding is commenced at a venue of the Court at which the Drug Court Division may not sit and act; and
(b)	it appears to the Court at any time before taking a formal plea from the defendant that the defendant might be eligible for a drug treatment order if

Sentencing (Amendment) Act 2002

s. 11	Act No. 2/2002
convicted of the offence by the Drug Court Division—

the Court may adjourn the proceeding to the Drug Court Division at a venue at which that Division may sit and act if the defendant

consents to the Court doing so. (2) However, if the defendant has a usual place

of residence, the Court may only adjourn the
proceeding to the Drug Court Division at a
venue if the defendant's usual place of
residence is within a postcode area specified,
in relation to that venue, by the Minister by

notice published in the Government Gazette.

(3) Despite anything to the contrary in this Act,

a venue of the Court to which a proceeding is adjourned under sub-section (1) is the proper venue of the Court for the purposes of this

Act.".

__________________
Sentencing (Amendment) Act 2002

Act No. 2/2002 s. 12

PART 4—CORRECTIONS ACT 1986

12. Definition of "correctional order"

See:

In section 3 of the Corrections Act 1986, after	Act No.
paragraph (g) of the definition of "correctional	117/1986. Reprint No. 4
order", insert—	as at 26 August
"(h) a drug treatment order (as defined in	1999 and

section 3(1) of the Sentencing Act 1991);".	amending Act Nos
38/1988, 11/1993 (as amended by
Nos 23/1994, 45/1996),
86/2000, 45/2001 and
72/2001. LawToday:
dpc.vic.
gov.au

13.  Persons not regarded to be in the Secretary's legal custody

(1) In section 6C(1) of the Corrections Act 1986,

after paragraph (b) insert—

"(ba) a person who is subject to a drug treatment

order and who is in the community under
that order;".

(2) In section 6C of the Corrections Act 1986, after

sub-section (2) insert—

"(3) A person is in the community under a drug treatment order even if he or she is—

(a) submitting to residential detoxification or other treatment in accordance with a program condition attached to the

order; or

(b) at a place in accordance with an order under section 18ZL(1)(c) or (e) of the Sentencing Act 1991.".

Sentencing (Amendment) Act 2002

s. 14 Act No. 2/2002

14. Repeals

In the Corrections Act 1986—

(a)	in section 3, in the definition of "correctional order", paragraph (h) is repealed; and
(b)	in section 6C(1), paragraph (ba) is repealed; and

(c) in section 6C, sub-section (3) is repealed.

═══════════════
Sentencing (Amendment) Act 2002

Act No. 2/2002	Endnotes
ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 29 November 2001

Legislative Council: 19 March 2002

The long title for the Bill for this Act was "to amend the Sentencing Act 1991 to provide for a drug treatment order as a new sentencing order, to amend the Magistrates' Court Act 1989 to establish a Drug Court

Division of the Magistrates' Court, to amend the Corrections Act 1986 with respect to the custody of a person subject to a drug treatment order and for other purposes."